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FKT v Children's Guardian

FKT v Children's Guardian

Case [2023] NSWCATAD 22 27 January 2023

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Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: FKT v Children’s Guardian [2023] NSWCATAD 22
Hearing dates: 26 September 2022
Date of orders: 27 January 2023
Decision date: 27 January 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
R Royer General Member
Decision:
(1) The time to lodge the application for Administrative Review is extended to 2 May 2022 pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.
(2) The decision of the respondent dated 16 March 2022 to refuse FKT’s application for a Working With Children Check Clearance is affirmed.

Catchwords:
ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – whether a reasonable person would allow person to work unsupervised with his or her child

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (Repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014

Cases Cited:
ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90
BFX v Children's Guardian [2014] NSWCATAD 115
BJB v Office of the Children's Guardian [2014] NSWCATAD 111
BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164
BKE v Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v CKF [2017] NSWSC 893
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commissioner for Children and Young People v FZ [2011] NSWCA 111
CXZ v Children’s Guardian [2020] NSWCA 338
DGZ v Children’s Guardian [2022] NSWCATAD 250
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
M v M (1988) 166 CLR (HCA)
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455
R v Commission for Children and Young People [2002] NSWIRComm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Texts Cited:
Nil

Category: Principal judgment
Parties: FKT (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
J Pen (Respondent)
Solicitors:
Applicant (Self- represented)
Crown Solicitor (Respondent)

File Number(s): 2022/00125689
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FKT v Children's Guardian

Details

AGLC: FKT v Children's Guardian [2023] NSWCATAD 22
Case: [2023] NSWCATAD 22
Decision Date: 27 January 2023

CaseChat Overview and Summary

The applicant, FKT, sought a Working With Children Check Clearance from the respondent, the Children’s Guardian. The applicant was refused clearance on the basis that the risk to children was real and appreciable, and that a reasonable person would not allow the applicant to work unsupervised with their child. The case was heard by the Civil and Administrative Tribunal of New South Wales.

The key legal issues were whether the risk to children was real and appreciable, and whether the weight of evidence supported the decision that a reasonable person would not allow the applicant to work unsupervised with their child. The court had to consider the circumstances of the allegations, the weight of the evidence, and the balance of probabilities.

The court found that the evidence supported the conclusion that the risk to children was real and appreciable. The court also found that a reasonable person would not allow the applicant to work unsupervised with their child. The court emphasised the importance of the weight of evidence in making these findings, and noted that it was not necessary to make positive findings on all matters. The court also considered expert evidence and the current and future risk to children.

The decision of the Children’s Guardian to refuse the applicant’s application for a Working With Children Check Clearance was affirmed. The time to lodge the application for Administrative Review was extended to 2 May 2022.

Orders

Orders of the court

(1) The time to lodge the application for Administrative Review is extended to 2 May 2022 pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.

(2) The decision of the respondent dated 16 March 2022 to refuse FKT’s application for a Working With Children Check Clearance is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

FKT v Children's Guardian [2023] NSWCATAD 22

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 24 of 24 shown

DGZ v Children's Guardian
[2022] NSWCATAD 250 Para 44

…Reference was made to the case of DGZ v Children’s Guardian [2022] NSWCATAD 250 which referred to a two stage approach in addressing allegations of harm. (1) a consideration of the likelihood of a harmful event in the future and (2) the severity of harm caused by the incident.…
CXZ v Children's Guardian
[2020] NSWCA 338

…NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 DGZ v Children’s Guardian [2022] NSWCATAD 250 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children’s Gu…
CYY v Children's Guardian (No 2)
[2017] NSWCATAD 262 Para 154

…We note that the case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73 the Tribunal observed the following:…
Children's Guardian v CKF
[2017] NSWSC 893

…tional Pty Ltd v SafeWork NSW [2017] NSWCA 41 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 3…
Bronze Wing International Pty Ltd v SafeWork NSW
[2017] NSWCA 41

…rdian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner…
Office of the Children's Guardian v CFW
[2016] NSWSC 1406

…thnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investmen…
CHB v Children's Guardian
[2016] NSWCATAD 214

…aw [1938] HCA 34: 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA…
BKE v Office of the Children's Guardian
[2015] NSWSC 523 Para 119

…l should discharge its statutory functions on the evidence we note the guidance from the Courts of record. In the case of BKE v Children’s Guardian [2015] NSWSC 523, Beech-Jones J sets out the approach that the Tribunal should take. BKE dealt with an enabling order application. Like the facts in BKE , matters in th…
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading
[2014] NSWCATAD 184

…been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to th…
BJB v NSW Office of the Children's Guardian (No 2)
[2014] NSWCATAD 164 Para 33

…been held that neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].…
BFX v Children's Guardian
[2014] NSWCATAD 115 Para 37

…roval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 , BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].…
BJB v Office of the Children's Guardian
[2014] NSWCATAD 111 Para 32

…urisdiction of the Tribunal under s 27 of the Act has been found to be protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per…
BFC v The Children's Guardian
[2014] NSWCATAD 90 Para 37

…The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 , BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].…
AYU v NSW Office of the Children's Guardian
[2014] NSWCATAD 69 Para 32

…otective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002…
ZZ v Secretary, Department of Justice
[2013] VSC 267

…er private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors s…
ADV v Commission for Children and Young People
[2012] NSWADT 8 Para 36

…ared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998 : see ADV v Commission for Children and Young People [2012] NSWADT 8.…
Commission for Children and Young People v FZ
[2011] NSWCA 111 Para 19

…t is protective and not punitive in nature, as set out by the Court when considering s 28 of the Act: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.…
Commission for Young People v V
[2002] NSWSC 949 Para 35

…The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42],…
M v M
[1988] HCA 68

…30. Fifth, significant guidance as to the approach to be adopted in such cases can be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69 (“M v M”). In M v M the Family Court found that it was not satisfied that a father had abused a child but was also not satisfied that the father had not…
Drake v Minister for Immigration and Ethnic Affairs
[1979] FCA 39 Para 40

…but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.…
Briginshaw v Briginshaw
[1938] HCA 34

…v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CKF [2017] NSWSC 893 Commission…
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott
[1933] HCA 30

…d a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).…
R v Commission for Children and Young People
[2002] NSWIRCOMM 101 Para 32

…AD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].…
PJR v Secretary to the Department of Justice
[2006] VCAT 2455 Para 165

…Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we believe that it is not the public interest to grant the clearance. FKT’s need for the WWCCC is to return to better employment whereby his remuneration and job satisfaction are gre…

Legislation cited in this decision · 7

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 40)
Child Protection (Prohibited Employment) Act 1998 (NSW)
1 mention (from Para 35)
Child Protection (Working with Children) Act 2012 (NSW)
1 mention (from Para 3)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 2)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention (from Para 7)
Commission for Children and Young People Act 1998 (NSW)
1 mention (from Para 36)

Medium Neutral Citation:	FKT v Children’s Guardian [2023] NSWCATAD 22
Hearing dates:	26 September 2022
Date of orders:	27 January 2023
Decision date:	27 January 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member R Royer General Member
Decision:	(1) The time to lodge the application for Administrative Review is extended to 2 May 2022 pursuant to s 41 of the Civil and Administrative Tribunal Act 2013. (2) The decision of the respondent dated 16 March 2022 to refuse FKT’s application for a Working With Children Check Clearance is affirmed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk – expert evidence – future risk – whether a reasonable person would allow person to work unsupervised with his or her child
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (Repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34: 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 CHB v Children’s Guardian [2016] NSWCATAD 214 Children’s Guardian v CKF [2017] NSWSC 893 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CXZ v Children’s Guardian [2020] NSWCA 338 DGZ v Children’s Guardian [2022] NSWCATAD 250 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 M v M (1988) 166 CLR (HCA) Office of the Children’s Guardian v CFW [2016] NSWSC 1406 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Texts Cited:	Nil
Category:	Principal judgment
Parties:	FKT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Pen (Respondent) Solicitors: Applicant (Self- represented) Crown Solicitor (Respondent)
File Number(s):	2022/00125689
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and…